Board members may find it challenging to regulate the use of marijuana in HOA communities. While cannabis continues to be illegal at the federal level, many states are legalizing its recreational and medical use. With state laws changing in this way, HOA boards may wonder whether or not they can still restrict the use of marijuana.
Can Homeowners Use Marijuana in HOA Communities?
In 2019, Illinois became the 11th state to legalize the recreational and medical use of marijuana when Gov. J.B. Pritzker signed the Illinois Cannabis Regulation and Tax Act. For community associations, the passing of this law spelled confusion. Board members, in particular, might struggle with navigating legalized marijuana in HOA communities.
It is important to note that the Cannabis Regulation and Tax Act amended parts of the Illinois Condominium Property Act (ICPA). More specifically, it amended Section 33, which pertains to the limitations on cannabis use. While the Cannabis Regulation and Tax Act legalized recreational and medical marijuana use, the amendment to the ICPA allows condo associations to place certain restrictions.
With this in mind, residents are legally allowed to use marijuana in Chicago, but association rules may prevent them from doing so. It is important to check the governing documents of the association.
Can HOA Prohibit Marijuana?
According to Section 33 of the ICPA, condo associations can prohibit residents from smoking marijuana both in individual units and in common areas. Associations can also place limitations on the smoking of marijuana.
Keep in mind that condo associations must have such prohibitions or limitations in their governing documents. Board members can’t simply pass a resolution or enact a rule that bans residents from smoking marijuana. Instead, the association must amend its documents, which usually require a vote from the membership.
It is also worth noting that the new amendment to the ICPA only applies to smoking cannabis. An association can prohibit or restrict the smoking of marijuana in common areas and an individual owner’s unit.
The ICPA does not allow boards to prohibit residents from consuming cannabis using other methods in individual units and limited common elements. In contrast, the ICPA also allows associations to prohibit residents from consuming cannabis using other methods in common elements.
Can HOA Restrict Growing Marijuana?
The Cannabis Regulation and Tax Act only amended the ICPA to a certain extent. The amendment does not tackle the topic of growing marijuana plants in HOA communities.
That said, associations can generally prohibit owners from planting or growing marijuana in common areas and individual units. The board must make sure it has the authority to make such a prohibition under the governing documents.
As with smoking marijuana, a ban on growing marijuana should be included in the CC&Rs or bylaws. To amend the CC&Rs or bylaws to include such a rule, an association must obtain a vote of approval from the membership.
Do State Laws Supersede HOA Bylaws on Marijuana Use?
Although state laws generally supersede HOA rules or bylaws, it is important to understand the language and nuance. The Cannabis Regulation and Tax Act does legalize recreational and medical marijuana, but it also gives associations the authority to ban or limit its use (through smoking). As a result, an owner may point out that marijuana use is already legal in Chicago, but that does not automatically mean they can disregard community rules.
Medical Marijuana and HOA Fair Housing
Courts have yet to provide a definitive ruling on how the Fair Housing Act (FHA) affects an owner’s right to smoke marijuana in their condominium. Generally, condominium associations may be required to make reasonable accommodations for owners with disabilities. This ensures they have equal access to and enjoyment of their units.
When it comes to medical marijuana, an owner might argue that smoking it is necessary to manage a disability and that an association’s restriction on marijuana use violates the FHA. Most legal experts believe this argument is unlikely to succeed. This is because smokers are not a protected class under the FHA.
Furthermore, marijuana remains illegal at the federal level. It is also worth noting that there is currently no legal precedent requiring COAs to allow marijuana use as a reasonable accommodation.
Another consideration is the potential health risks of secondhand marijuana smoke. Like cigarette smoke, marijuana smoke contains carcinogens.
The Disadvantages of Smoking Marijuana in HOA
There are several potential drawbacks to allowing residents to smoke marijuana in community associations. These include legal risks, health concerns, and potential disputes among residents.
- Secondhand Smoke Exposure. Like cigarette smoke, secondhand marijuana smoke contains harmful chemicals and carcinogens. Residents may be negatively affected by exposure. Children, elderly individuals, and those with respiratory conditions are particularly at risk.
- Odor Complaints. Marijuana has a strong and distinct smell. The smoke can easily travel between units and spread in the neighborhood, leading to complaints from residents.
- Fire Hazard. Smoking marijuana increases the risk of accidental fires. This risk is especially troubling in condo buildings or townhome communities with shared walls and common areas.
- Insurance Risks. Some HOA insurance policies may have exclusions or higher premiums if a community allows marijuana smoking.
- Impact on Property Values. Prospective buyers may not want to live in a community that allows the smoking of marijuana.
Weighing the Decision
Permitting marijuana in HOA communities, particularly in the form of smoking, can cause a lot of trouble for board members. The ICPA does allow condominiums to ban smoking marijuana. A condo board that wishes to do so should amend their governing documents to include such a restriction.
Hillcrest offers HOA management services, including legal assistance, to communities in Chicago. Call us today at 630-627-3303 or contact us online to request a proposal!
